CA Unpub Decisions

A jury convicted defendant of the first degree murder of Joe Valenza. The jury also found true a special circumstance that defendant murdered Valenza while lying in wait. The defendant was sentenced to life imprisonment without possibility of parole (LWOP). On appeal, defendant argues that (1) there was insufficient evidence of the watching and waiting and the surprise elements of the lying in wait special circumstance; (2) the lying in wait special circumstance is unconstitutional because it does not sufficiently narrow the class of murders eligible for the death penalty or LWOP; and (3) the trial court erroneously denied him pretrial custody credit. Court conclude that there was sufficient evidence to support the lying in wait special circumstance. Court also conclude that the lying in wait special circumstance comports with the Eighth Amendment. Finally, court determine that the trial court's self correction in awarding the defendant custody credit renders that issue moot. As defendant's assignments of error are without merit, court affirm the judgment.

Crystal W. timely appeals from the juvenile court order denying her presumed mother status for her grandson's daughter, Heather T., and father, Samuel C., had given custody of Michael to Crystal soon after he was born prematurely in May 2004. Mother died in a car accident in July 2005. Crystal was Michael's primary caretaker until he was detained by the Department of Public Social Services (DPSS) in October 2005.
Court hold the trial court properly denied Crystal's motion because substantial evidence supports the juvenile court's finding that Crystal cannot establish her status as Michael's presumed mother under Family Code section 7611, subdivision (d).

On March 6, 2006, an information was filed by the District Attorney of San Bernardino City in case No. FWV-036868 which alleged in count one a violation of Health and Safety Code section 11377, subdivision (a), possession of a controlled substance, and five special allegations charged pursuant to Penal Code sections 1170.12, subdivisions (a) - (d) and 667.5, subdivisions (b) - (i).
Thereafter, on April 7, 2006, defendant, represented by counsel, pled guilty as charged and admitted two of the special allegations. Defendant was committed to state prison for five years less custody credits and, in accordance with the negotiated disposition, the remaining special allegations were stricken on motion of the district attorney and misdemeanor case number MWV-102452 was dismissed in the interests of justice. (Pen. Code, S 1385

Father appeals from an order terminating his parental rights to his son, (Welf. and Inst. Code, S 366.26.) Father contends there is insufficient evidence to support the juvenile court's finding that the Indian Child Welfare Act (25 U.S.C.S 1901 et seq.) (ICWA) did not apply to the proceedings, because the record does not contain copies of any notices or certified mail return receipts showing that the Department of Public Social Services (the Department) complied with the notice requirements of the ICWA. (25 U.S.C. S 1912(a).) On this basis, Father requests that court reverse the order terminating parental rights and remand the matter "for proper notice under the ICWA and a new jurisdictional hearing. (Italics added.)
Court reverse the judgment and order terminating parental rights, and remand the matter for further proceedings in accordance with Jonathon S. Court do not order a new jurisdictional hearing, nor do we reverse any orders other than the order terminating parental rights.

Appellant, (Opinski), was hired by the City of Modesto (City) as the general contractor for construction of a new police headquarters building. Opinski was insured by appellant, Pennsylvania General Insurance Company (Penn. General). When defects were found in the construction, the City made claims against Opinski which were referred to binding arbitration. Opinski and Penn. General settled the City's negligence claims in the arbitration for $500,000, and then filed the present action against the subcontractors on the project, including respondent, All West Construction (All West), seeking indemnity and subrogation. All West moved for summary judgment against both Opinski and Penn. General, and on the same day moved for terminating sanctions against Opinski. The trial court granted each of the motions. On appeal, Opinski and Penn. General contend it was error to grant the summary judgment motions because All West failed to meet its initial burden as the moving party. Additionally, Opinski contends the court erred in granting terminating sanctions against it. As more fully discussed below, we agree that the trial court should not have granted summary judgment against the appellants because All West failed to meet its burden of showing entitlement to judgment as a matter of law. At the same time, court conclude the trial court did not abuse its discretion in imposing terminating sanctions against Opinski. Accordingly, the judgment entered in favor of All West against Opinski will be affirmed, but reversed as to Penn. General.

Appellant Gerald Byrd pled no contest to two counts of robbery (Pen. Code, S 211) charged in two separate cases, viz., Tulare County Superior Court case Nos. VCF134601 (case No. 1) and VCF136392 (case No. 2), respectively. On remand, the court again denied probation and imposed a prison term of three years. The court gave the following reasons for denying probation: Byrd's conduct indicated he was" a danger to society to some extent," and the victim of one of the robberies was "vulnerable." That victim was a woman who was walking up to a bank to make a deposit. The court imposed a prison term of three years, consisting of the two-year lower term in case No. 1 and one year, representing one-third of the midterm, in case No. 2.

Appellants appeal from the trial court's order denying their petition for a writ of mandate. The Ciraulos had sought an order requiring the City of Newport Beach (the City) to grant them a variance from the ordinary strictures of its building code, and thereby allow then to retain the portion of their newly built home which had been constructed in violation of that code. The Ciraulos argue the trial court's order must be reversed for two reasons: First, they assert the court abused its discretion in denying their request to take limited discovery to augment the administrative record in support of their estoppel claim; and second, they contend the court prepared an insufficient statement of decision.

Appellant appeal from a judgment dismissing the City of Newport Beach (the City) from their lawsuit, which followed the court,s order sustaining the City's demurrer without leave to amend. The Ciraulos argue the court erroneously determined the City was immunized from its alleged liability by Government Code section 818.8, and otherwise contend their cause of action was sufficient to withstand the City"s demurrer. Court conclude the court did not err in applying the immunity statute, and affirm the judgment on that basis.

A homeowner proceeded to arbitration against a construction company and the individual contractor who was the qualifier for the construction company's license. An arbitration award was entered in favor of the homeowner. When the homeowner sought to confirm the arbitration award to judgment, the construction company and the individual contractor asserted that the trial court had no jurisdiction over either of them, for lack of proper service, and the individual contractor additionally claimed that the arbitrator could not issue an award against him because he was not a party to the construction contract containing the arbitration provision. The trial court confirmed the arbitration award to judgment.
The trial court did not err in so doing. The construction company and the individual contractor have not demonstrated a failure of proper service. Furthermore, the individual contractor forfeited his argument that he was not a proper party to the arbitration proceedings, by not raising it before those proceedings were concluded. Court affirm the judgment.

Father, the presumed father of one year old appeals from termination of his parental rights at the Welfare and Institutions Code section 366.26 permanency hearing. Father contends error occurred at the earlier 12-month review hearing, when the court terminated reunification services and referred the case to the .26 hearing. He also argues his counsel at the 12-month review hearing was ineffective.
The order is affirmed.

A modification decision.

In this dependency case (Welf. and Inst. Code S 300 et seq.), the father of the dependent minor children Brynne B., Arnold B., Jr. and Avery B., (Father, Brynne, Arnold Jr., and Avery, respectively), has appealed from several orders of the trial court, specifically, orders made on February 17, March 23, May 19, July 6 and 7, 2006.
Father's notice of appeal was filed on July 7, 2006, and he does not explain how the notice could be timely as to all of the orders he challenges. Moreover, although he contends that his attorneys were ineffective in their assistance of him in this matter, for the reasons discussed below, court find Father's contentions do not warrant reversal of the orders he has challenged here.

Appellant brought this action against her employer, respondent Princess Cruise Lines, Ltd., alleging employment discrimination and wrongful termination, in violation of the California Fair Employment and Housing Act (FEHA). Appellant's action was dismissed on summary judgment after undisputed facts showed that no part of appellant's employment was performed in California. The trial court held that there could be no extraterritorial application of California law under the facts of this case. Court agree and affirm the judgment.

Appellants appeal from a judgment of dismissal with prejudice of the City of Santa Paula (the City) after an order sustaining a demurrer without leave to amend. Appellants named the City, among other defendants, after a vehicle hit appellant in a marked crosswalk in the City. Appellants allege that the City negligently owned, maintained and operated public property on which a dangerous condition existed, and that by installing but failing to properly maintain a crosswalk warning light system, the City caused appellant's injuries. The trial court sustained the City's demurrer to appellants' first amended complaint without leave to amend and dismissed the City with prejudice. Court reverse the judgment.